Friendly, Feinberg and Mansfield, Circuit Judges.
After a jury trial in the United States District Court for the Southern District of New York before Charles L. Brieant, Jr., J., appellants Enriquito Alsondo, Henry Rosa and Ralph Feola were convicted on charges that they had assaulted federal narcotics agents, while the latter were engaged in performance of official duties, in violation of 18 U.S.C. § 111, and that they had conspired to violate that provision, 18 U.S.C. § 371. Alsondo was also convicted on a third count charging the unlawful carrying of a deadly weapon during commission of a felony, in violation of 18 U.S.C. § 924(c)(2).*fn1 For reasons which follow, we reverse all convictions under the conspiracy count and dismiss that charge; we reverse the substantive assault conviction of Feola and direct that the indictment as to him be dismissed; we reverse the substantive assault conviction of Rosa and remand as to him; we affirm the convictions against Alsondo on the two substantive counts against him.
The facts may be stated briefly. On August 21, 1971, Agent Hall, while working in an undercover capacity, met Michael Farr*fn2 through an informer, at which time Farr promised to sell Hall a kilo of heroin supplied through appellant Ralph Feola. Ten days later, and accompanied by appellant Rosa, Farr met Hall and the informer, now joined by Agent Lightcap also acting in an undercover capacity. The five proceeded to an apartment on West 68 Street in Manhattan, where the agents were to purchase a half kilo of heroin for $17,000; Agent Hall had a "flash-roll" of cash with him, which he showed Rosa. When the group arrived at the apartment, Alsondo let them in. Agent Lightcap was given custody of the money and remained in the living room while Alsondo, Rosa and Farr ushered Hall and the informer into the bedroom. Alsondo pointed to packages of white powder, which he identified as the narcotics. (Upon subsequent testing, the substance proved to be powdered sugar.)
In rapid succession, Farr and Rosa left the bedroom; the informer requested a scale to "test" the substance the agents believed to be heroin; Alsondo left the bedroom, and Agent Hall, after opening a closet door and discovering a man bound and gagged,*fn3 followed Alsondo. Walking into the hallway, Agent Hall saw Agent Lightcap at the opposite end, facing Hall; Alsondo stood between them, facing Lightcap. Hall saw Alsondo reach behind his back and begin to pull a revolver from his waistband. Hall shouted a warning to Lightcap and identified the pair as federal agents; the two then subdued Alsondo after a scuffle and handcuffed him. Agent Lightcap thereupon walked into the living room and saw Rosa, who rushed toward him and shoved him in an apparent attempt to flee. Rosa was apprehended as was Farr, who had remained in the kitchen. Upon subsequent inspection of the premises, appellant Feola was discovered hiding in a closet and was arrested. At the time of arrest, Feola possessed a small telephone book containing the phone numbers of the West 68 Street apartment, of Farr and of Alsondo.*fn4
The conspiracy count was submitted to the jury on the theory that an unlawful agreement among the four co-defendants could be inferred from the acts committed and circumstances as described above: The Government argued that the four had agreed to bilk the agents by fraudulently selling them sugar for $17,000 and had further agreed (or had foreseen the probable need) to rob the agents at gunpoint should the victims discover the swindle and attempt to thwart it. The district judge instructed the jury that proof of specific knowledge of the official identity of the assault victims was not required to establish a conspiracy to violate 18 U.S.C. § 111. He said:
It is not necessary for the government to prove that the defendants or any of them knew that the persons they were going to assault or impede or resist were federal agents. It's enough, as far as this particular element of the case is concerned, for the government to prove that the defendants agreed and conspired to commit an assault.
In so instructing the jury, the district judge appears to have relied on a line of cases beginning with United States v. Lombardozzi, 335 F.2d 414, 416 (2d Cir.), cert. denied, 379 U.S. 914, 85 S. Ct. 261, 13 L. Ed. 2d 185 (1964), which hold that such knowledge or scienter is not a necessary element of the substantive offense under section 111. See, e.g., United States v. Ulan, 421 F.2d 787, 788 (2d Cir. 1970); United States v. Montanaro, 362 F.2d 527 (2d Cir.) (per curiam), cert. denied, 385 U.S. 920, 87 S. Ct. 233, 17 L. Ed. 2d 144 (1966).*fn5
The question remains, however, whether proof of such scienter is nevertheless necessary to convict of conspiring to violate section 111. In United States v. Crimmins, 123 F.2d 271 (2d Cir. 1941), we held that while knowledge that stolen securities had passed through interstate commerce was not a required element of the substantive offense under the statute there involved, such knowledge was a necessary element of proof of the crime of conspiring to cause stolen securities to be transported in interstate commerce. In a much-quoted passage, Judge Learned Hand stated:
While one may, for instance, be guilty of running past a traffic light of whose existence one is ignorant, one cannot be guilty of conspiring to run past such a light, for one cannot agree to run past a light unless one supposes that there is a light to run past.
123 F.2d at 273. See also United States v. Sherman, 171 F.2d 619, 624 (2d Cir. 1948), cert. denied, 337 U.S. 931, 69 S. Ct. 1484, 93 L. Ed. 1738 (1949). We have frequently reaffirmed this distinction. E.g., United States v. Vilhotti, 452 F.2d 1186, 1189 (2d Cir. 1971), cert. denied, 406 U.S. 947, 92 S. Ct. 2051, 32 L. Ed. 2d 335 (1972) (conspiracy to buy, receive or possess chattels stolen from interstate commerce); United States v. Jacobs, 475 F.2d 270, 282 (2d Cir. 1973), cert. denied, 414 U.S. 821, 94 S. Ct. 116, 38 L. Ed. 2d 53 (1973) (conspiracy to deal in stolen securities which have moved or are to move interstate).
The Crimmins rationale has been criticized,*fn6 and it has been pointed out that if the federal interest involved in such statutes -- e.g., the use of the mails, interstate transportation -- were viewed "not as an element of the respective crimes but frankly as a basis for establishing federal jurisdiction,"*fn7 then much of the problem before us would disappear. However, although the National Commission on Reform of Federal Criminal Laws has proposed this change,*fn8 Congress has not yet acted upon it. Absent legislative change, the recognition that specific knowledge of factual circumstances conferring federal jurisdiction is unnecessary to proof of the substantive offense under such statutes but is required for proof of conspiracy remains very much the law in this circuit and, apparently, elsewhere as well.*fn9
On this view, the conspiracy convictions before us cannot stand. It is true that we have found no case squarely raising the question whether scienter is required to convict for conspiring to violate 18 U.S.C. § 111. This is not surprising; most people -- even those not inclined to be law-abiding -- would not agree to assault a federal officer except perhaps as incident to another, more serious crime. But the dearth of direct authority only emphasizes the great number of analogous cases already cited.*fn10 As applied to the crimes before us, Crimmins and its progeny mandate the view that specific knowledge of the official federal capacity of assault victims must be proved to establish conspiracy to violate section 111, though such proof is unnecessary to convict for the substantive offense. It might be possible to distinguish the Crimmins line of authority on the ground that the interest of the federal government in protecting its officials against physical attack is so strong, cf. Ladner v. United States, 358 U.S. 169, 173-175 & n. 3, 79 S. Ct. 209, 3 L. Ed. 2d 199 (1958), that prosecutions under the general conspiracy statute may nonetheless be maintained even in the absence of specific anti-federal intent, at least when an assault has actually occurred. We do not believe, however, that the thrust of existing precedent can be so easily disregarded. Furthermore, requiring proof of scienter for a conspiracy to deal in stolen securities but not for a conspiracy to violate section 111 would create an anomaly: Federal prosecution of the former crime is made more difficult although the investigative resources of the federal system may be indispensable for coping with a large multi-jurisdiction conspiracy, cf. Developments in the Law -- Criminal Conspiracy, supra note 6, at 938-39, while federal prosecution of the latter conspiracy is facilitated, although it is an offense likely to be localized and more amenable to control through state law enforcement systems.
Accepting the controlling precedents somewhat reluctantly, we must conclude that the instruction to the jury on the conspiracy count was erroneous. Although no exception was taken to the charge -- indeed, no mention of the issue is made in the briefs submitted to us, nor was the question pursued at oral argument until we raised it from the bench*fn11 -- we nonetheless believe that the charge constituted "plain error," Fed.R.Crim.P. 52(b), which we should notice sua sponte. Where there is a failure to charge an essential element of the offense, the error almost invariably affects "substantial rights" within the meaning of the rule. See United States v. Fields, 466 F.2d 119, 121 (2d Cir. 1972); United States v. Massiah, 307 F.2d 62, 70-71 (2d Cir. 1962) (Hays, J., concurring), rev'd on other grounds, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). And we note that improper jury charges under section 111 (particularly relating to elements of scienter) have been a fertile source for judicial willingness to invoke the "plain error" rule. E.g., United States v. McKenzie, 409 F.2d 983, 985-986 (2d Cir. 1969) (dictum); see United States v. Young, 464 F.2d 160, 164 (5th Cir. 1972); cf. United States v. Rybicki, 403 F.2d 599, 602 (6th Cir. 1968) (indictment charged obstruction, by threat of force, of IRS agents engaged in performance of their duties in violation of 26 U.S.C. § 7212(a)). Moreover, appellants do argue on appeal that the evidence of conspiracy was insufficient as a matter of law. While their focus is more general, it is quite clear from an examination of the record that the evidence was insufficient on the issue of scienter and that directed judgments of acquittal should have been granted when motions for that relief were timely made. Certainly, the necessary scienter could not be properly imputed to the alleged conspirators on the ground that they could reasonably have anticipated that the victims of their planned assault might be federal agents. Compare United States v. Corallo, 413 F.2d 1306, 1326-1327 (2d Cir.), cert. denied, 396 U.S. 958, 90 S. Ct. 431, ...